The chapter evaluates and critiques how the CJEU has used fundamental rights in contexts relating to copyright in the internet, most notably by resorting to the metaphor of a fair balance of rights or proportionality as conceptual framework. Albeit resorting to the language of fundamental rights, proportionality and fair balance of rights, the key judgments of the Court have been about deciding the future trajectories of major information age policy issues the EU legislator has not (yet) addressed. The chapter also notes that compared to member state level, there is neither a full-scale copyright code with its historical traditions and doctrines on the Union level, nor a comprehensive, unhurriedly matured private or procedural law that could provide a meaningful starting point or background for the relevant interpretations. This connotes that fundamental rights assume a novel role in EU copyright law: they do not mostly control and reorient existing.
The position of human rights in intellectual property (IP) related investor-state dispute settlement (ISDS) has been the subject of prolific scholarly debate. This chapter focuses on the overlap of human rights, IP and international investment agreements (IIAs). It evaluates the impact human rights have had on the relevant ISDS practices and critically examines possible reasons for the increasing overlaps. It rejects human rights proportionality as a solution to increase the legitimacy of investment treaty arbitration. The chapter posits that –pending more profound reform of the whole investment arbitration system – the way forward is to decrease the overlaps through IIA design and to develop deference towards host state legislature as an approach in ISDS, especially through the doctrine of margin of appreciation.